LONG BEFORE I BEGAN my legal career, I understood that many of Africa’s problems could be tied to the waste of our petroleum resources. Even more apparent was the fact that Africans were not part of any kind of deal-making structure: When negotiations involving foreign investors’ oil and gas exploration, production, and revenue-sharing took place, Africans were not at the table—or even in the room.
I asked myself—why aren’t Africans part of this economic empowerment? Why are Africa’s deals being driven by Westerners?
Those concerns eventually led me to go into energy law and work to change the dynamics I had observed. From the beginning, I was influenced by the lessons of my parents, who taught me not to stand by idly in the face of injustice. Later, I was fortunate enough to be mentored by the late Ron Walters, who was Jesse Jackson’s deputy campaign manager. Dr. Walters emphasized the teachings of Charles Hamilton Houston, the Black American lawyer who helped dismantle U.S. Jim Crow laws. Houston used to say that a lawyer is either a social engineer or a parasite on society. I am determined to be the former: My experiences since law school have been an evolving expression of my deepest held beliefs and my desire to see a better Africa.
Building a legal career in Africa, and later, my own firm, required a great deal of hard work, tenacity, and a Teflon-like exterior to criticisms. Here I was, a kid under 30 with a business plan, guts, and a laptop who believed he could play with the big boys. The big firms and the industry players were not going to make way for a rookie, even though I was qualified with the hunger to succeed. Why would a general counsel or a CEO of an oil company take a chance on me with no track record of winning anything in Africa?
As God is always good to me, I was eventually given more and more business from companies such as Schlumberger, Kosmos, Heritage, Chevron, Lukoil, Afex Global, Vanco (now PanAtlantic), Gazprom, DHL, Suncor, Gunvor, IFD Kapital, and many African petroleum companies and ministries. I did well because I was on the ground and focused on getting results and winning for these clients that trusted me. I took every call, stayed up late at night, cut out crazy friends and negative people, and used the best of my legal education to make Africa work for me.
As the CEO of Centurion Law Group, we went on to represent both the business and government side of oil and gas deal negotiations across Africa. Around the time I was starting this book, we advised Nigeria-based Oranto Petroleum in the landmark acquisition of four strategic oil blocks in the Republic of Niger, and South Africa’s state-owned Strategic Fuel Fund in the acquisition of one of Africa’s most sought after oil assets, Block B2 in South Sudan.
My experiences have shown, time and time again, that without good deal-making, oil and gas resources lose much of their power to create a better future for Africans. Good deal-making is vitally important. Not only do governments need to negotiate deals that result in long-term benefits for their people, but African companies also need to negotiate deals that keep them on an equal playing field with their competition and empower them to grow, create and sustain jobs, and support the communities they’re based in.
For Africa to truly realize all of the benefits oil and gas operations have to offer, we need to see good deal-making across the board.
I can help. While my advice can’t replace solid training and experience in deal-making, I can share some helpful principles and, hopefully, help others avoid some of the mistakes I’ve observed.
First of all, no matter what side of the table you’re on, prepare, prepare, and prepare some more. Too many times, I have found myself in negotiations where the other side has not even read the contract or looked at the asset we’re trying to discuss! And yet, there they sit with power to make very big, difficult decisions. Basically, they’re courting disaster. At best, they’re squandering economic opportunities. But they also could be opening the door to agreements with the potential to harm their company or country, not to mention the environment or even local stability.
You’ve probably heard the phrase, “You get what you pay for.” That truth applies to the time and effort we invest in negotiating good deals. There’s a reason big companies hire 20 to 30 lawyers, an accountant, a negotiation expert, and more to represent them at the negotiation table. They want to get the best deal possible for themselves. Even if your company or government can’t afford a “dream team” to represent your interests, you must do everything humanly possible to make your negotiations fruitful. That means we do the work of gathering information, educating ourselves about the resource to be discussed and the interests of those coming to the table, and making sure we have key decision-makers backing up our terms.
What’s more, when trustworthy, practical help is accessible, we should take it, whether that comes in the form of legal representation, guidance from NGOs, negotiation training programs, or volunteer consultants. The New Partnership for Africa’s Development (NEPAD), for example, an agency of the African Union, provides technical assistance to help countries make good deals and has offered regional training programs on contract negotiation.1 Another resource is the Natural Resource Governance Institute, based in Washington, D.C. In 2017, the institute released the Natural Resource Charter Benchmarking Framework, which provides 170 questions that African governments should ask investors about natural resource governance.2
It is also vital to consider the perspectives of both parties. As a negotiator, especially on the private side of deal-making, you need to do your best to make sure everyone at the table feels the resulting deal is in their interests; that it’s a win-win situation. That’s how you sustain healthy, long-term relationships and the give-and-take that truly results in fair deals, both now and in the future. I have a very long-term approach: I want to ensure I’ll be able to work with these people for a long time. And if they don’t see themselves winning, if they don’t see themselves having something that is reflective of what their expectations are, then we have lost as a whole.
As Richard Harroch, managing director and global head of mergers and acquisitions for San Francisco-based VantagePoint Capital Partners, says, never underestimate the value of being a good listener.
“Some of the worst negotiators I have seen are the ones who do all the talking, seeming to want to control the conversation and expound endlessly on the merits of their position,” Harroch wrote for Forbes in 2016. “The best negotiators tend to be the ones who truly listen to the other side, understand their key issues and hot buttons, and then formulate an appropriate response. Try to gain an understanding of what is important to the other side, what limitations they may have, and where they may have flexibility.”3
And what’s important to the parties in an African oil and gas deal? At the big-picture level, foreign oil companies tend to focus on seeing a fair return on their investments, while governments are more concerned with oil and gas activities’ impact on them and their country.
Governments want to develop their countries. They want to create jobs. They want to generate a tax base.
If I’m representing a company, for example, I make sure I’ve reviewed the national development agenda of the government that the company wants to make a deal with. I need to know if the government has made environmental protection a priority or if their focus is on local empowerment. Say the government is concerned with local content, I want to be ready to show data on short- and long-term job creation, along with the company’s commitment to training and hiring local people and partnering with local suppliers.
Another key factor: When you’re negotiating, ask yourself what happens after the deal. Are the terms the parties are agreeing to realistic? What has been done to make sure everything being agreed upon actually happens—in a reasonable amount of time? Have we addressed potential obstacles? Have we laid out consequences for a failure to act? What good is a deal, even one with great terms for your company or country, if it can’t realistically be executed? I always address how a deal will be implemented and its long-term viability.
In his 2004 article for Harvard Business Review, “Getting Past Yes: Negotiating as if Implementation Mattered,”4 veteran negotiator Danny Ertel cited the example of the 1998 joint venture between AT&T and BT to bring global interconnectivity to multinational customers. Concert, the resulting $10 billion start-up, was expected to bring in $1 billion in profits from day one. Instead, Concert floundered and went out of business three years later.
“To be sure, the weak market played a role in Concert’s demise, but the way the deal was put together certainly hammered a few nails into the coffin,” Ertel wrote. “AT&T’s deal makers scored what they probably considered a valuable win when they negotiated a way for AT&T Solutions to retain key multinational customers for itself. As a result, AT&T and BT ended up in direct competition for business—exactly what the Concert venture was supposed to help prevent. For its part, BT seemingly out-negotiated AT&T by refusing to contribute to AT&T’s purchase of the IBM Global Network. That move saved BT money, but it muddied Concert’s strategy, leaving the start-up to contend with overlapping products.”
Negotiating with implementation in mind is a lot of work—and requires greater collaboration and communication among the parties at the table—but it also increases the likelihood of shared successes.
A few things to consider:
Keep all of the parties in the loop: Try tackling fact gathering and analysis together—before negotiations get underway. Don’t surprise the others with last-minute information or decisions. If you become aware of issues that could interfere with the success of the proposed project, raise them early, and encourage joint efforts to resolve them or develop alternative approaches.
Ask the tough questions: Test the practicality of the commitments both parties are making. Can everyone deliver? How? Work together to develop early-warning systems and contingency plans.
Involve key stakeholders: Make sure you know whose approval is needed for the terms outlined in your proposal. Identify who might interfere with implementation and what you will do if that happens.
Governments have a great deal to lose—and gain—from the success of their negotiating. Not only do the deals they make impact their political futures, but they also impact the lives of millions of people.
One of the most important things governments can do, long before there’s any talk of negotiation talks, is to limit themselves to the right kinds of investors. I’d like to see governments go John F. Kennedy on prospective investors to ask, “What can you do for our country?” Will the investor support the country’s economic goals? Are they all about profit, or are they willing to consider the country’s needs as well?
Think about it, government leaders: There is no reason to accept an LNG project that would take 100 percent of the product created with your country’s resources to Europe or Asia or America, especially when you need LNG to power your own country. Your priority should always be using your country’s natural resources strategically to better its future.
At the same time, African governments need to be realistic about the challenges they face. There are a slew of issues that complicate dealings with African governments: burdensome tax policies, excessive red tape, unrealistic local content requirements, lack of judiciary protection for contracts, lack of transparency—the list goes on.
Foreign investors are willing to overlook quite a bit for a chance to profit from Africa’s considerable oil and gas resources, but it’s harder to ask a foreign investor to launch a major capacity building initiative, for example, when a country’s policies already make operating there expensive or inefficient. Companies need to see a serious, ongoing effort on the part of government to protect their interests and allow them to make a reasonable profit. I know resolving these policy issues can be time-consuming, but addressing them must be priorities for governments that are serious about reaping the full benefits of their natural resources.
Of course, there’s no reason for African governments to roll over and submit entirely to foreign investors’ wishes. In fact, I would like to see those negotiating on behalf of African governments to be much more assertive with foreign investors. For example, I have seen too many lawyers passively accept model contracts handed to them by foreign companies. Attorneys, you can politely decline. Don’t give the other party undue control.
It’s like when you go out jogging or walking with somebody—you don’t think about it, but in most cases, one of you adjusts your pace to match the other. Once you accept the other side’s contract, you are walking on their time. I think African countries should be the ones setting the pace. They should be driving the terms of agreements and engaging the negotiations from a position of strength. They should be embedding initiatives that allow them to create jobs and training opportunities, to develop infrastructure, and monetize their resources into contracts they draft. (See Chapter 6 for more about monetizing natural resources.)
I’m not calling for unreasonable demands. Again, it’s important to consider the needs of both sides. Governments must give investors a chance to generate income from the resources they’re interested in and recoup their investments. At the same time, governments need to look at creating value for their country and its people. It’s a balancing act. It’s challenging, but it’s doable.
If you have any questions about the power of good deal-making, look at Mauritania and Senegal.
Since Kosmos Energy discovered massive stores of natural gas, as much as 50 tcf, off the coasts of these countries in 2015, one exciting announcement has followed another, as Kosmos—followed by its partner, BP—started investing in local businesses and communities. Petroleum industry training programs were launched. Young people started taking free English classes. Some areas even got electricity for the first time, giving them access to things many of us take for granted.
It’s exciting stuff—especially to people living in Mauritania and Senegal. It’s also encouraging to anyone interested in the future of African oil and gas. Stories like this are proof positive that oil and gas development can bring opportunity, hope, and prosperity to countries that have historically been at a disadvantage.
Here are just a few examples of how Kosmos and BP have been bringing positive changes to the communities where they work and do business:
Since its discovery, Kosmos has invested in workplace health and safety training programs for local oil and gas industry suppliers in Mauritania. The multinational also has provided English classes for young people in Nouakchott.5
Kosmos entered a multi-year partnership with the Gérer les Impacts des Activités Extractives (GAED) international master’s program, a joint master’s degree program on managing impacts from the extractive sector, held at the University of Nouakchott and the Gaston Berger University of Saint-Louis, Senegal. Kosmos is supporting the GAED master’s program by providing employees as guest lecturers, hosting field trips and internships, and contributing financial support. GAED students have also joined Kosmos’ teams in the field for seismic and drilling Environmental and Social Impact Assessments (ESIAs) in both Mauritania and Senegal.
Kosmos has also made it a priority to support the Ndiago region, which is directly onshore from the company’s license areas near the border with Senegal. For example, community authorities suggested that the local economy could benefit from electrification projects, so Kosmos developed a rural electrification project that now provides power to more than 2,100 people.
In Senegal, Kosmos consulted with more than 1,000 coastal community residents before completing an ESIA of deepwater exploration activities in the region. Hence, community members’ concerns are on record—and hopefully will impact exploration activities. Kosmos also facilitated oil and gas workshops for civil society organizations in Dakar.
BP, which has partnered with Kosmos Energy to initiate multi-well exploration programs in Mauritania and Senegal, unveiled plans for a long-distance learning center in Nouakchott for oil and gas sector training. The center will be designed in close partnership with Mauritania’s Ministry of Petroleum, Energy and Mines.
In a cooperative agreement with Mauritania’s Ministry of Petroleum, Energy and Mines, BP is providing engineering institute École Supérieure Polytechnique in Nouakchott with specialized laboratory equipment and postgraduate scholarship funding.
In Senegal, BP invested millions to support the new National Institute of Oil and Gas (INPG), created with the goal of building national capacity for Senegal’s oil and gas industry. The company has also sponsored thousands of hours of professional English lessons for government employees and have been offering “LNG 101” workshops to enhance Senegal residents’ technical and commercial understanding.6
In 2018, BP announced that they would be developing a floating LNG plant offshore Mauritania and Senegal. The facility is designed to provide roughly 2.5 million tonnes of LNG per year. The project will make gas available for domestic use in both countries; this means that Mauritania and Senegal will be better positioned to provide their people much-needed access to electricity, which is key to economic growth and stability there.7
It would be accurate to say this activity was made possible by Mauritania’s and Senegal’s huge natural gas reserves. And the generous commitments of foreign investors.
But, don’t be fooled—there’s more to the story. I’m certain that behind the scenes, the governments of Mauritania and Senegal played a critical role in making these positive developments possible. They did that through the deals they negotiated with BP and Kosmos, not to mention the inter-governmental cooperation agreement (ICA) they negotiated and signed in early 2018 to make the development of a cross-border natural field possible.
Clearly, good deal-making has far-reaching implications for African people, communities, and businesses.
Another deal that stands out as a model is the landmark 2018 agreement between Noble Energy and Equatorial Guinea’s Ministry of Mines and Hydrocarbons that I describe in Chapter 6. I am very thankful to have played a role in the negotiations. The agreement, which also involved state-owned GEPetrol and some third parties, allows Noble to pump 600 bscf of natural gas from the offshore Alen field to the Punta Europa integrated gas complex near the capital city of Malabo.8
Before the deal, Equatorial Guinea’s only LNG facility received natural gas feed from the aging Alba Field, where production is expected to go into decline within the next two or three years. Under the agreement, a 65-kilometer pipeline will be built to connect Noble’s operations to Punta Europa. The pipeline will be designed with the capacity to receive not only Alen’s output, but that from surrounding fields, too. This answers not just the need for further feedstock, but also limits the country’s dependence on a single downstream project.
Also exciting, at the same time this agreement was signed, Gabriel Mbaga Obiang Lima, Equatorial Guinea’s Minister of Mines and Hydrocarbons, announced plans to build a natural gas megahub at Punta Europa. The megahub will aggregate the production of any existing gas and a new natural gas discovery in Equatorial Guinea. It is not exaggerating to say that the country is in the early stages of a gas revolution that will provide opportunities for economic diversification, creation of local content and jobs, and a path for state-owned gas company, Sonagas, to take a leading role in the development and marketing of LNG.9
Another encouraging example of good deal-making is the April 2018 project framework agreement that the Ugandan government, through the Ministry of Energy and Mineral Development and state-owned Uganda National Oil Company, made with the Albertine Graben Refinery Consortium (AGRC). The agreement paved the way for the consortium to develop, design, finance, build, operate, and maintain a $4 billion refinery in Kabaale.10
This deal didn’t come easily, but it does represent a win for Uganda. Because the AGRC is providing project financing, Uganda will gain vital, value-adding infrastructure without incurring more debt.11
If negotiation were a science, deals would be arranged like molecules, all neat and tidy and yielding the same result, over and over. Just like putting two hydrogens and an oxygen together always produces water, having the right parties and terms in place would generate success every time.
But negotiation isn’t a science. At best, it’s a messy art, more like finger painting than photorealism. You simply can’t predict with 100 percent certainty what the future will look like. Sometimes, you lose an oxygen molecule, and instead of water, you have poison. And sometimes, something happens halfway around the world that sours your deal. This means finding a way to safeguard your interests under a variety of circumstances is critically important. I always go into deal-making with this thinking.
Unfortunately, there was no way Equatorial Guinea could have anticipated the U.S. shale revolution when it penned its 2004 agreement to sell LNG—some 3.4 million tonnes of it a year—to BG Group. And in fairness, neither could BG or anyone else, for that matter.
The deal called for BG to buy gas from Equatorial Guinea for 17 years, from 2007 to 2024, and send it to the U.S. for processing and domestic sales. The product was priced at a discount to Henry Hub—the gas futures benchmark—which is commonplace. That meant the African nation was getting about $6 per million British thermal units (MMBtu) in 2004 and an even better $15 MMBtu the following year.12 Not bad at all.
Then, the bottom fell out of the global gas market. With an influx of American shale coming onto the scene, prices fell below $4 MMBtu, eroding Equatorial Guinea’s profit.
That’s bad enough. But because BG had negotiated terms that allowed it to sell the LNG it purchased from Equatorial Guinea anywhere in the world, the product previously destined for American shores was diverted to Asia, instead—where an overheated market had pushed prices as high as $15 MMBtu. That meant BG was making huge profits off of LNG it bought for hardly more than a song.
Obviously, Equatorial Guinea was upset: You would be, too. But it was hamstrung by the fact that it had failed to negotiate a profit-sharing agreement with BG for any gas sold to non-U.S. buyers. The country also lacked a renegotiation clause.
After a new set of negotiations—a process that I was fortunate to be part of—BG agreed to give the government the larger of 12.5 percent of Asian profits or $20 million per quarter.
BG also agreed to social programs supporting maternal and child health, malaria prevention, and sanitation projects.
Since then, BG Group was sold to Royal Dutch Shell, which inherited the 12.5 percent deal.
Fortunately, with the now-Shell deal wrapping up in a few years, Minister of Mines and Hydrocarbons Gabriel Mbaga Obiang Lima has a chance to return to the negotiating table. He told Reuters he wants more royalties and shorter terms—50 percent for three to five years beginning in 2020.13 And while he still doesn’t have a crystal ball into the future, at least that shows better vision.
This LNG offtake deal was the sexiest deal in Africa ever for a trader, and it continues to be presented as an example of how not to do a deal in oil and gas training courses.
Fair enough. But I would suggest there’s another takeaway to consider: You can always fix bad deals while respecting the sanctity of contracts. While the end result still wasn’t perfect, Equatorial Guinea was able to recover significant revenue from BG.
We have every reason to believe Africa will be seeing more landmark O&G deals; deals with the potential to significantly impact African businesses, communities, and people.
More and more Africans are being educated. And more and more Africans want, and expect, to help the continent.
Whether they align themselves with African companies, governments, or civil society, I’m confident this new generation will be playing a role in negotiating contracts that are good for everyday Africans.
I have a few words of advice for this generation, for Africa’s young attorneys and deal-makers: Never lose sight of the significance of your work. By negotiating effectively for African businesses and governments, you can play a huge role in transforming the lives of hundreds of thousands of Africans. Few things in life are more satisfying. I’m proud of the law group I’ve built, but I consider the work I’ve done to get justice for and empower African individuals, businesses, and communities among my greatest successes.
I am the first to advise many young people to avoid feeling entitled to anything. No one owes us anything. We have to earn it. Our approach and success in oil and gas negotiations stem from our deep preparation and mindset.
I have stated many times: You succeed when you look for mentors and let them mentor you. It’s important to have someone who’s promoting you when you’re not in the room. Next, be stubbornly loyal. Don’t try to pull a fast one because you know more than others! Further, embrace your trials and shortcomings: They teach you to be a better person and lawyer.
I have seen too many young lawyers who, when they get a chance to be on a podium, tend to spend more time being celebrities than being around colleagues or supervisors. You have not yet earned and completed a deal, so it’s best to avoid having a big head. It is crucial to have a strong focus on building your skills because clients really want you to be good at what you do. Your writing, critical thinking, and in-depth industry skills can’t hurt you. Most clients want to know who is working on their deals, but they don’t care about your race or nationality. They want to know you are qualified and can get the job done.
Commit to work. Cut out a lot of BS. Pay your dues, as your time to shine will come. Always ask yourself, “Am I adding value to the firm or the company?” Don’t think you are in the firm to be the labor union representative or the head of diversity.
Don’t walk around the firm or negotiate with arrogance, and don’t give off a sense that you are entitled, or your opinion matters on every subject. You are not owed anything. It is important to not cry discrimination on every issue, whether it is sexism, racism, or xenophobia. You beat them with excellence and success. I see it every day. I simply work hard, and success follows.
You must understand that building a successful practice calls for something not taught in law school: the ability to hustle and deliver on deals. I have always had run-ins with young lawyers because I can be a tough, goal-oriented taskmaster. I have a fierce sense of urgency that many others don’t share. Working for Centurion is not for the naïve or the fainthearted—I don’t tolerate young lawyers viewing Centurion as merely a job. Everyone has to give their maximum effort all the time. The truth is, I am harder on myself. I am never satisfied, and I just believe I can win bigger and do the deal better. The most important outcome for me is to have people around me achieve more than they ever thought they could.
The wisdom and advice Ron Walters shared with me holds true for you today: Each one of us has a mandate to use our education to impact communities and to promote economic growth and empowerment.
So, yes, seek career success and prosperity. But, in the end, choose to do good: Use your skills to make sure that everyday Africans receive their fair share of the benefits the continent’s natural resources can provide.